John Palfrey

Dawn Nunziato, a law prof at George Washington University Law School, has written a helpful and interesting new book, entitled Virtual Freedom: Net Neutrality and Free Speech in the Internet Age.

Her focus in “Virtual Freedom” is — as the subtitle suggests — free speech on the net, framed primarily for the current net neutrality debate.  She compares two distinct conceptions of the First Amendment, one affirmative and the other negative.  She argues forcefully for the affirmative approach to the First Amendment.  In making out her argument, she recalls John Stuart Mill and Oliver Wendell Holmes (on the marketplace of ideas conception), through to Cass Sunstein (whose views get a great deal of airtime in the book) and Owen Fiss, among others.  Along the way, she takes up, fairly extensively, the core relevant doctrines: the state action doctrine, the public forum doctrine, the fairness doctrine, must carry, and common carriage.  She also spends a good deal of time in the caselaw, carefully reviewing also the matters one might expect to see, many of which predate today’s Internet: Marsh v. Alabama, Pruneyard, and other state action doctrine/shopping mall-type cases; the AP decision of 1945; Red Lion; Turner; Brand X; Carlin; AT&T v. the City of Portland; and so forth.  She takes up several Internet-specific matters as well (such as Intel v. Hamidi, CDT v. Pappert, and the ICANN debates) and sets them in context.

Her bottom line is that Congress should pass a law (or require the FCC) to prohibit broadband providers from blocking legal content or applications and from engaging in various forms of discrimination and prioritization of packets.  She argues, too, in favor of greater transparency by broadband providers when they do engage in selective passage of packets.  She says maybe we should regulate powerful search engines, such as Google, too.

Nunziato’s book made me think of two other books I’ve re-read in the past few weeks.  The first is Newton Minow and Craig LaMay’s Abandoned in the Vast Wasteland: Children, Television, and the First Amendment (1996), which takes up similar issues related to various conceptions of the First Amendment, though from the angle of protecting and supporting children.  The other is Jonathan Zittrain’s free-for-the downloading Future of the Internet — and How to Stop it (2008), especially in chapters 7 through 9, in which JZ takes up many of the same issues (changes in the public/private online and how we should think about “regulation” of online behaviors).

I enjoyed this book: it’s well-written and, just as important, I think Nunziato is, by and large, right as to her normative view.  Virtual Freedom: Net Neutrality and Free Speech in the Internet Age belongs on the bookshelf (virtual or otherwise!) of anyone working on broadband regulation, net neutrality, online censorship, and the like.

Yesterday was one of the best days I can remember at the Berkman Center. The FCC’s full commission was in town, along with lots of others interested in the Comcast-BitTorrent dispute. It keyed in on what some call “network neutrality” and others called the discussion of what “reasonable network management” means.

Tim Wu and Yochai Benkler testified. They were great. It’s worth listening to the audio archive of what they said, and reviewing the impressive amount of coverage the debate stirred up.

HLS student Kevin Parker submitted video testimony. Listen for his silver car analogy. On the rhetorical front, I think that we need the breakthrough analogy that makes everyone understand my this matters.  Also: Kevin, among other students in our Web Difference class, blogged a lot of it here.

Yesterday, FCC Chairman Kevin Martin, an HLS grad, was hugely generous with his time, meeting with students and faculty on campus during his visit — much appreciated by us hosts.